Issue (composed by On Point)
Does harmless error analysis apply when a trial judge erroneously denies a defendant the right to testify in her own defense?
Nelson wanted to testify in her child sexual assault trial, and the court engaged in a colloquy with her about waiving her right to remain silent, see State v. Denson, 2011 WI 70, 335 Wis. 2d 681, 779 N.W.2d 531 (recommending, but not requiring, a colloquy with a defendant who has decided to testify). During the colloquy the court asked what she would say on the stand. Nelson said she wouldn’t deny having sexual intercourse with the child or dispute the child’s age, but she insisted she wanted her side to be heard, essentially because she disputed details of the child’s versions of events. (¶2). The judge prohibited her from testifying, concluding it would be against counsel’s advice and was “completely irrelevant” to the elements the State had to prove. (¶3).
In the court of appeals the state did not defend the judge’s decision (though didn’t concede error, either) but simply argued that any error was harmless. Nelson essentially argued the denial of the right to testify is structural, and not subject to harmless error analysis. The court of appeals concluded harmless error analysis applies, relying on State v. Flynn, 190 Wis. 2d 31, 527 N.W.2d 343 (Ct. App. 1994). The defendant in Flynn brought an ineffective claim alleging his trial lawyer’s actions denied him the right to testify, and the court of appeals disposed of the case by concluding the lawyer’s actions were not prejudicial. Id. at 50-56. Flynn held that the prejudice analysis done when addressing ineffective assistance claims is “conceptually similar” to the harmless error test for constitutional violations, and the court in this case concluded it was bound by Flynn to apply harmless error analysis to the alleged error here. (¶7). Of course, the error was harmless, given the overwhelming evidence of her guilt and the fact she wasn’t going to dispute the elements of the offense. (¶¶9-12).
Wisconsin recognized the existence of the constitutional right of a defendant to testify in State v. Albright, 96 Wis. 2d 122, 291 N.W.2d 487 (1980). That decision implied that denial of the right could be harmless, for like Flynn, the case involved a claim that trial counsel hindered the defendant’s exercise of the right, and the court said the defendant could bring an ineffective claim if counsel’s actions result in loss of the right and “was prejudicial to the defendant,…” Id. at 133. In response the dissent cited State v. Rosillo, 281 N.W.2d 877, 879 (Minn. 1979), which holds the denial of the right cannot be treated as harmless error. Id. at 141 n.3 (Abrahamson, J., dissenting).
So the supreme court will now face head on whether denial of the right to testify is structural error or can be harmless. The U.S. Supreme Court has yet to decide the issue, but about a dozen lower courts have held denial of the right can be harmless. “A great weight of authority has held this type of error to be a ‘trial error,’ which may be ‘quantitatively assessed in the context of other evidence presented,’ … and thus susceptible to a harmless error analysis.” Quarels v. Commonwealth, 142 S.W.3d 73, 81 (Ky. 2004), quoting Arizona v. Fulminante, 499 U.S. 279, 307-08 (1991), and citing state and federal cases. On the other hand, three states have concluded the error is structural: In addition to Rosillo, cited above, see State v. Dauzart, 769 So. 2d 1206 (La. 2000); and State v. Rivera, 741 S.E.2d 694 (S.C. 2013).
There are sound reasons to conclude that violation of the right to testify in one’s defense is structural error. When recognizing the right to testify the Court said “an accused’s right to present his own version of events in his own words” is “[e]ven more fundamental to a personal defense than the right of self-representation” and that “[a] defendant’s opportunity to conduct his own defense by calling witnesses is incomplete if he may not present himself as a witness.” Rock v. Arkansas, 483 U.S. 44, 52 (1987). If so, violation of the right should be treated like a violation of the right to represent oneself, which is a structural error. McKaskle v. Wiggins, 465 U.S. 168 (1984). The language in Rock even echos the Court’s observation in McKaskle, 465 U.S. at 177, that “[t]he right to appear pro se exists to affirm the dignity and autonomy of the accused and to allow the presentation of what may, at least occasionally, be the accused’s best possible defense.” Further, we can’t know the impact on the jury of the defendant’s willingness to take the stand instead of availing himself of the shelter of the Fifth Amendment, his candor and courtesy (or lack of them), his persuasiveness, his respect for court processes. “Because we cannot truly judge the effect of the defendant’s being denied the right to take the stand, and because we should be concerned with protecting both the right to choose whether to testify and the substance of the testimony,” harmlessness analysis is inappropriate: “To apply such an outcome-determinative analysis at worst denigrates the position of the individual with respect to his own defense and trial and at best exhibits an unthinking paternalism toward criminal defendants.” Wright v. Estelle, 572 F.2d 1071, 1082 (5th Cir. 1978) (Godbold, J., dissenting). See also Arthur v. United States, 986 A.2d 398, 414-15 (D.C. 2009). Whether our supreme court will be impressed with this reasoning remains to be seen.